This appeal concerns two actions: a prior action (No. 12-CH-4515) filed by Direct Auto on December 26, 2012, and this current action (No. 14-CH-14413), filed by Direct Auto on September 5, 2014, in which Direct Auto seeks to give preclusive effect to the judgment in the prior case.
¶ 4 Both actions arise out of a single auto accident and concern the coverage of a single insurance policy. Direct Auto issued a policy to Erica Bahena that insured a 2008 Chevy Malibu owned by her and that specifically listed Jessica Bahena as an additional driver. On April 1, 2012, Jessica Bahena was driving the Chevy Malibu in Chicago when it collided with a vehicle driven by Ahmed Kishta, in which Noel and Ariel Hernandez2 were passengers.
¶ 5 On December 26, 2012, Direct Auto filed the first action which asked the circuit court of Cook County to declare that there was no coverage under its policy because of Erica Bahena’s alleged failure to disclose all the residents in her household over the age of 15. This prior action (No. 12-CH-4515) by Direct Auto named as defendants Jessica and Erica Bahena; Sana Kishta, as next friend of Ahmed Kishta, deceased; Ariel Hernandez; and Ean Services, LLC, d/b/a Enterprise Rent A Car (Enterprise), but it did not name Noel Hernandez. Ahmed Kishta was driving a 2011 Nissan Altima owned by Enterprise in which Ariel and Noel Hernandez were passengers. Jessica Bahena was driving the vehicle that is the subject of the Direct Auto policy and that is owned by Erica Bahena.
In sum, Direct Auto failed to name Noel Hernandez as a defendant in a prior action and now seeks to benefit from that failure by binding him to an order in an action to which he was not a party, and when he sought information to challenge that order as it applied to him, Direct Auto defaulted rather than provide the information.
¶ 69 Direct Auto knew Noel Hernandez was a necessary party but it chose not to amend its complaint to add him in order to avoid delay in the first action, because that action was “nearing” resolution. As a result, there has been nothing but delay ever since—five years of it and counting.
¶ 70 There are two different doctrines that must be interpreted to work together: necessary party and res judicata. It cannot be the case that one violates the necessary party doctrine, by knowingly and deliberately failing to add a necessary party, and then turns around and uses res judicata as a sword against the very party that it failed to add. In addition, Direct Auto has failed in its burden to show that the requirements of res judicata, such as privity, are satisfied